https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11694

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **MISC. CRIMINAL APPLICATION NO. E017 OF 2026** **OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS---------------------------------------------------------------------------------------------APPLICANT** **VERSUS** **CAROLYNE LEL MARIAS --------------------------------------RESPONDENT** **RULING** 1. The Notice of Motion dated 3rd February 2026 was filed by Director of Public Prosecutions expressed to be brought under Articles 50, 157 and 165 of the Constitution of Kenya, Sections 362 and 364 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya sought orders that;- **i). THAT** the matter be certified as extremely urgent and heard ex parte in the first instance, service thereof be dispensed with. **ii). THAT** this Honorable Court be pleased to call for and examine the record of the Proceedings in MCCRMISC/E4434/2025 so as to satisfy itself as to the correctness, legality or propriety of the Order issued by the court on 27th January 2026. **iii). THAT** this Honorable court be pleased to review, vary, reverse, set aside and or quash the decision of the trial Magistrate and any other consequential orders in MCCRMISC/E4434/2025 **iv). THAT** the costs of and incidental to the application be provided for. 1. The grounds on the face of the application were that;- **a).** the honorable Magistrate Ordered the release of Motor Vehicle Registration Number KCT 051A vide an application dated 7th November 2025. **b).** the application was granted without considering full material facts to the detriment of the applicant and investigative agencies involved. **c).** the respondent has since threatened to institute contempt proceedings against the applicants if the order for release of the motor vehicle is not complied with which might cause irreparable damage to continuing investigations into an offence allegedly committed with the aid of the motor vehicle. **d).** it is in the interests of justice that further proceedings and execution of the orders in MCCR/E4434/2025 be stayed pending the hearing and determination of this Revision. **e).** the respondent will not suffer any prejudice if the orders sought are granted. **APPLICANT'S WRITTEN SUBMISSIONS** 1. The Applicant seeks orders setting aside the ruling of the Chief Magistrate's Court at Milimani delivered on 28th January 2026 directing the release of motor vehicle registration number KCT 051A, an Isuzu lorry. 2. The application is founded on the Notice of Motion dated 3rd February 2026 supported by the affidavit of No. 57558 Sergeant Wilfred Chiponda. 3. The Applicant submits that they are aggrieved by the decision of the subordinate court because the learned trial magistrate ordered release of the motor vehicle without considering the full factual circumstances surrounding its detention. 4. According to the Applicant, the vehicle was intercepted while transporting heavy railway metals alleged to be the property of Kenya Railways Corporation and suspected to have been unlawfully obtained. 5. It is further contended that the vehicle itself forms a crucial exhibit in ongoing investigations and remains liable to forfeiture depending on the outcome of those investigations and any subsequent criminal proceedings. 6. The first issue identified by the Applicant is whether the subordinate court considered all material facts before directing release of the motor vehicle. 7. On this issue, the Applicant submitted that the learned magistrate failed to consider critical matters placed before the court, namely that the vehicle had been intercepted while transporting heavy railway metals belonging to Kenya Railways Corporation. 8. The applicant further asserted that the metals were suspected to have been unlawfully obtained and that the vehicle constituted a key exhibit in ongoing investigations. 9. The Applicant argued that release of the vehicle would prejudice investigations and defeat the ends of justice because the vehicle could be tampered with, disposed of, altered, or removed from the jurisdiction before completion of investigations and prosecution. 10. The Applicant submitted that in exercising discretion over release of detained property, a court is required to consider the totality of the circumstances, including the nature of the goods carried, the stage of investigations, the evidentiary value of the property, and the risk of interference with investigations. 11. The applicant relied on **Joram Mwenda Guantai v Republic [2000] eKLR**, where the Court held that a judicial officer must balance the proprietary interests of the owner against the interests of justice and public safety. 12. The Applicant contended that the subordinate court failed to undertake that balancing exercise and omitted to consider both the railway metals and the statutory forfeiture implications arising from the investigations. 13. The applicant therefore argued that the release order was issued without due consideration of material facts and is consequently irregular and liable to be set aside. 14. The second issue raised by the Applicant is whether the subordinate court possessed the legal authority to release a motor vehicle that was under investigation and had not been formally produced before the court as an exhibit. 15. The Applicant submitted that at the time the impugned order was made, the motor vehicle remained an exhibit in an active criminal investigation and had not been formally produced in any criminal proceedings. 16. It was argued that the learned magistrate lacked jurisdiction to order release of property that remained under police custody as part of ongoing investigations and which had not been tendered before the court as evidence. 17. According to the Applicant, where a vehicle is detained for evidentiary purposes, the proper course is either to await completion of investigations and its production during criminal proceedings or for an aggrieved party to pursue appropriate judicial review remedies rather than seek a blanket release order. 18. The Applicant maintained that the subordinate court exceeded its lawful authority by directing release of property which was still the subject of active investigations. 19. In support of that proposition, reliance was placed on **David Mwangi Gichuru v Republic [2016] eKLR**, where the High Court is said to have held that a subordinate court cannot release an exhibit that is not before it or which has not been formally marked as an exhibit in criminal proceedings. 20. The Applicant further relied on the decision and submitted that the power to release exhibits under section 123 of the Criminal Procedure Code only arise after the property has been produced before a court and has come within the custody and control of that court. 21. The Applicant submitted that since no criminal proceedings had been instituted at the time and the vehicle remained in police custody as part of active investigations, the learned magistrate acted without legal authority and the release order was therefore a nullity. 22. The Applicant consequently urged the Court to find that the subordinate court failed to consider material facts, improperly exercised its discretion, and acted without jurisdiction in directing release of the vehicle. 23. This Court was therefore urged to allow the application, set aside the ruling of the Chief Magistrate's Court delivered on 28th January 2026, and order that motor vehicle registration number KCT 051A remain in police custody pending completion of investigations and any ensuing criminal proceedings or forfeiture process. **RESPONDENT'S WRITTEN SUBMISSIONS** 1. The Respondent opposed the Applicant's Notice of Motion seeking revision, review, variation, reversal, or setting aside of the order issued by the Chief Magistrate's Court on 27th January 2026 directing the immediate release of motor vehicle registration number KCT 051A. 2. The Respondent contended that the application was not a genuine invocation of the High Court's revisionary jurisdiction but rather a belated attempt to relitigate issues already determined by the subordinate court and to legitimize deliberate non-compliance with a lawful court order. 3. The respondent submitted that the Director of Public Prosecutions participated in the release proceedings, was afforded notice and an opportunity to respond, yet failed to place before the subordinate court the matters now relied upon in support of revision. 4. The Respondent submitted that the Court must consider the full chronology of events. 5. According to the respondent, the motor vehicle was impounded on or about 28th October 2025 during investigations relating to alleged theft of railway materials. 6. Although the driver was charged shortly thereafter, the Respondent herself was not charged. 7. Instead, she moved the subordinate court seeking release of the vehicle. The prosecution participated in those proceedings, and on 27th January 2026 the Chief Magistrate's Court ordered the immediate release of the vehicle. 8. The order was served and subsequently verified by the issuing court after inquiries from the detaining station. 9. According to the respondent, despite verification, the officers allegedly failed to comply with it. 10. The respondent further submitted that it was only thereafter that the Applicant filed the present revision proceedings on 3rd February 2026 and later approved charges against the Respondent on 26th February 2026. 11. The Respondent argued that this sequence demonstrates that the revision application and subsequent charging decision were reactions to the release order and the demand for compliance rather than consequences of any newly discovered evidentiary concerns. 12. The Respondent maintained that the Applicant's complaint that the lower court failed to consider material facts was untenable because the Applicant was not a stranger to the proceedings. 13. The prosecution was aware of the release application, appeared before the subordinate court, and had every opportunity between November 2025 and January 2026 to place before that court all facts it considered material. 14. The Respondent contends that a party who had notice, representation and opportunity to be heard cannot deliberately fail to place evidence before the subordinate court and thereafter invite the High Court to intervene through revision. 15. According to the Respondent, the present application amounts to a late replying affidavit disguised as revision proceedings. 16. The Respondent further submitted that the application misconceives the nature of the Court's revisionary jurisdiction. 17. The respondent argues that Articles 165(6) and (7) of the Constitution together with sections 362 and 364 of the Criminal Procedure Code confer a supervisory jurisdiction intended to correct illegality, impropriety, incorrectness or procedural irregularity in subordinate court proceedings. 18. The jurisdiction was not intended to permit a dissatisfied litigant to reargue the merits of a matter or to substitute revision for an appeal. 19. In support of this proposition, the Respondent relied on **Rotich v Republic [2024] KEHC 2944 (KLR)** and **Khaemba v Republic [2024] KHC E620 (KLR)**, which are cited for the principle that revision is not a substitute for an appeal and should not be used by a party seeking a second opportunity to argue the merits of a case after failing to properly present it before the lower court. 20. The Respondent therefore submitted that the Applicant's grievances are appellate in nature and fall outside the proper scope of revision. 21. The Respondent also placed significant emphasis on the Applicant's conduct after issuance of the release order. The respondent submitted that the order of 27th January 2026 was a valid and binding judicial command which remained enforceable unless and until it was stayed or set aside by a competent court. Once the order was served and verified, the officers had no lawful option but to comply. 22. The Respondent argued that their continued refusal to release the vehicle constituted deliberate non-compliance with a court order. She further contended that the subsequent stay granted by the High Court on 3rd February 2026 could not retrospectively sanitize earlier disobedience. 23. In support of these arguments, the Respondent relied on **Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] eKLR**, where the Court affirmed that court orders must be obeyed unless and until they are discharged; **Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR**, where the Court emphasized that court orders are binding commands and not suggestions; and **Hadkinson v Hadkinson [1952] 2 All ER 567**, for the proposition that a party who remains in defiance of a court order should not ordinarily obtain discretionary relief while such disobedience persists. 24. The Respondent submitted that the Court should protect its authority and prevent its processes from being used to cleanse prior disobedience. 25. A central theme of the Respondent's case is that the Applicant's actions disclose a collateral purpose. 26. According to the respondent if sufficient evidence existed against her from the beginning of the investigations, there was no justification for charging only the driver while leaving her uncharged for several months. She noted that the decision to charge her came only after the release order had been issued, served, ignored, and after revision proceedings had commenced. 27. The Respondent submitted that the timing is legally significant and supports the inference that the criminal process is being used to defeat the release order and to justify continued detention of the vehicle. In support of this argument, reliance is placed upon **Stanley Munga Githunguri v Republic [1985] KEHC 6 (KLR)**, in which the Court recognized its power to prevent oppressive or abusive criminal proceedings; **Kuria & 3 others v Attorney General [2002] eKLR**, where the Court warned against criminal proceedings instituted for collateral purposes; and **Republic v Director of Public Prosecutions & 2 others ex parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR**, where it was recognized that prosecutorial discretion remains subject to judicial scrutiny where exercised oppressively, irrationally or for an improper purpose. The Respondent submitted that the chronology in the present matter raises precisely such concerns. 28. The Respondent further contended that the prolonged detention of the vehicle was causing severe and continuing prejudice. She stated that KCT 051A is a commercial lorry and her sole source of livelihood. She asserted that its detention has deprived her of income and undermined her ability to support herself and her dependants. 29. She argued that by the time the release order was issued the vehicle had already been detained for approximately three months and that the continued detention after the release order amounts to economic punishment before trial. 30. According to the Respondent, the Constitution protects property rights, fair administrative action, access to justice and fair trial rights, all of which require the State to adopt the least restrictive means necessary to achieve legitimate investigative objectives. 31. The Respondent objected to the applicant’s contention that continued detention was necessary to preserve evidence. She submitted that less restrictive preservation measures are available and would adequately secure the prosecution's interests. 32. In this regard, she proposed photography and video recording of the vehicle and cargo, preparation of inventories and valuations, deposit of logbook documents, preservation undertakings, and production of the vehicle whenever required by the trial court. 33. In support of that position, she relied on **Ochieng v Directorate of Criminal Investigations & another [2024] KEHC 3521 (KLR)**, where the Court recognized that detention of property for investigative purposes is not indefinite and that less restrictive measures may preserve evidentiary value, and **Mwangi v Republic [2025] KEHC 14356 (KLR)**, where the Court accepted that photographs, inventories and undertakings may adequately preserve evidence and justify release of detained property. 34. The Respondent therefore argued that continued physical detention of the vehicle was unnecessary, disproportionate and punitive. 35. The Respondent also submitted that the Applicant's invocation of public interest is misplaced. While acknowledging the public interest in criminal investigations and prosecution of offences, she argues that public interest equally encompasses obedience to court orders, fair process, proportionality, constitutional rights, and the integrity of the administration of justice. 36. The respondent contended that public interest cannot be invoked to justify disregard of lawful court orders or indefinite deprivation of property where reasonable preservation measures are available. 37. The Respondent characterized the entire application as an abuse of the court process. 38. She argued that the cumulative effect of the chronology demonstrates oppressive and improper use of legal processes: the vehicle was detained for months; the owner was not charged; the owner successfully obtained a release order; the order was served and verified; compliance was refused; revision proceedings were then filed; and only thereafter were charges approved against the Respondent. 39. In support of the argument that courts should not countenance abuse of process, reliance was placed upon **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR**, where the Court of Appeal condemned the use of court procedures for purposes inconsistent with the fair administration of justice. 40. The Respondent submitted that the present application bears the hallmarks of such abuse and should be rejected. 41. On the issue of reliefs, the Respondent invoked Articles 40, 47, 48 and 50 of the Constitution and argued that the Court should fashion practical and effective remedies capable of vindicating those rights. 42. The respondent cited the case of **Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR)** for the proposition that courts should grant effective relief to protect constitutional rights. The Respondent therefore urged the Court not merely to dismiss the application but also to ensure enforcement of the release order through clear compliance directions. 43. On costs, the Respondent submitted that she had been compelled to incur substantial legal expenses defending a release order which ought to have been obeyed. 44. She relied on **Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR** and **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR** in support of an award of costs in her favour. 45. She argued that the Applicant should bear the financial consequences of proceedings necessitated by its own failure to comply with the subordinate court's order. 46. Accordingly, the Respondent urged the Court to find that the Notice of Motion dated 3rd February 2026 is a misuse of the Court's revisionary jurisdiction, a belated attempt to challenge proceedings in which the Applicant fully participated, and an effort to legitimize prior non-compliance with the release order issued on 27th January 2026. 47. The respondent urged the court to dismiss the application with costs; that the interim stay be discharged and the release order be upheld and enforced; 48. The respondent further urged the court to order that the Office of the Director of Public Prosecutions, the OCS Railways Police Station and the investigating officers be directed to facilitate immediate release of motor vehicle KCT 051A; and that, if preservation of the vehicle is considered necessary, the Court adopt less restrictive preservation measures in place of continued detention. **ANALSYIS AND DETERMINATION** 1. The applicant moved this court by way of a certificate of urgency seeking to halt the release of Motor Vehicle KCT 051A which according to the applicant, was used as an instrumentality of crime and as such would be the subject of forfeiture proceedings at the conclusion of the trial in Milimani Chief Magistrates criminal case No. E560 of 2025 Rep vs Samwel Njoroge, who is said to have been the driver of the subject Motor vehicle at the time the alleged offence was committed. 2. Two disturbing things emerge in this application;- a). an allegation that the applicants brought this application purely to scuttle the compliance with a lawful court order b). the allegation that the order releasing the motor vehicle was irregularly issued because investigations into the criminal matter were still on going and the motor vehicle had not been produced as an exhibit in the case cited above. 1. The crux of this matter is that a court order was issued following an application for the release of the motor vehicle by the respondent before the Chief Magistrates Court on 28th January 2026. 2. The question that immediately arises is whether the lower court had the jurisdiction to order the release of a motor vehicle which was held by the police pursuant to investigations and which had not been produced as an exhibit. 3. Jurisdiction is everything and without it, a court acts in vain and the product of any such legal proceedings, undertaken without jurisdiction is a nullity. See In **Owners of Motor Vessel “Lillians” Vs. Caltex Oil (Kenya) Ltd [1989] KLR 1** the Court of Appeal stated :- ***“Where a court takes upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”*** 4. This court has had a glance at the application filed before the lower court and it is clear from the application that the respondent herein sought the release of the Motor vehicle to her pending the conclusion of the trial in Criminal case No E 560 of 2025. 5. The respondent sought a declaration from the learned Hon Magistrate to have the continued detention of the motor vehicle by the Inspector General of Police, the Director of Criminal Investigations and the Director of Public Prosecutions as being unconstitutional, unjust and contrary to the principles of fairness and proportionality under the Constitution. 6. The respondent in urging that application relied on the provisions of Section 8 of the Magistrate’s Court Act, Article 23,25(c), 50(1), 259(1) of the Constitution and all other enabling provisions of the law. 7. To contextualize the application on needs to look at the full text of Section 8 of the Magistrate’s Courts Act in order to determine whether the learned Honorable Magistrate had the requisite jurisdiction to grant the orders sought by the Respondent in the first place. 8. The Section provides;- “8. (1) **Subject to Article 165 (3) (b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.** **(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25 (a) and (b) of the Constitution.** (3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate's court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights. (4) The Chief Justice shall make Rules for the better exercise of jurisdiction of the magistrate's courts under this section**.” (emphasis mine)** 1. The jurisdiction of the Magistrate’s court to hear and determine applications for redress of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights is limited to matters concerning freedom from torture and cruel, inhumane or degrading treatment or punishment and freedom from slavery and servitude. 2. The jurisdiction of the Magistrate’s court does not therefore extend to determinations of threats to the right to property under Article 40 of the Constitution. If the intention of the Legislature had been to confer broader jurisdiction to the Magistrate’s Courts, nothing would have been easier that for the legislature to say so. 3. The respondent in her application before the Learned Honorable Magistrate invoked Article 23 of the Constitution. It is however important to highlight that the Article in very express terms reserves jurisdiction for the High Court. The respondent could not therefore avail herself of the same in making that application. 4. Further, the respondent was not the accused in the matter that led to the impounding of the Motor vehicle thus her entry into the matter could only have been through a direct application to the High Court for redress by way of a Constitutional Petition or a judicial review application to challenge the continued detention of her motor vehicle. 5. The learned Honorable Magistrate by ordering the release of a motor which had not been produced before him as an exhibit in the criminal case acted without jurisdiction. 6. Having determined that the order issued by the learned Honorable Magistrate was issued without jurisdiction, the rest of the arguments fall by the wayside. 7. The effect of the finding above is that the motor vehicle shall remain in the custody of the investigating officer until such time it is produced as an exhibit. 8. The applicant is however directed to move with speed and ensure that the hearing at the lower court in respect of the exhibit is fast tracked to avoid the motor vehicle wasting away due to adverse effects of weather. 9. The lower court upon production of the motor vehicle shall have the necessary jurisdiction to deal with the issues of release or forfeiture as the case may be. 10. The decision of the Learned Honorable Magistrate made on 28th January 2026 is hereby quashed for it was improperly and irregularly issued by the court without jurisdiction. 11. The application is thus allowed and a consequential order is hereby made that the applicant shall ensure that the issue of production of the motor vehicle is dealt with within 30days of this ruling to allow the parties to ventilate their respective claim before the learned Honorable magistrate. 12. In the event that the applicant shall not have taken any action as directed by this court then the investigating officer shall forthwith release the subject motor vehicle to the respondent in recognition of her right to property under Article 40 of the Constitution. 13. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 2nd day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Muriungi h/b Njau for Respondent Mogere for Applicant